The bias in favour of complexity

Legal complexity and reasonable fees: can they co-exist? ... Tulkinghorn examines the notion that in order for trials to be fair, they have to be complicated ... When you hear lawyers and legislators proclaiming the virtues of plain English and simplification - don't believe them

The one great principle of the English law (which we have inherited) is to make business for itself. (Charles Dickens, Bleak House, 1852-3, Chapter 39).

It does this by making the legal system more complex than it needs to be.

The resultant spurious complexity creates massive inefficiency, with trials that should take a day taking weeks, but that does maximise lawyers' fees, so it's all right.

However, not everyone agrees that making money for lawyers should be the primary focus of the justice system, so the profession needs to be ready with excuses for all the "complexity".

For example, in order for trials to be "fair" they have to be complicated. This argument can be further developed:

"Contrary to the views of many, judges are not senile goats who ignore public concerns on law and order while fuelling themselves on a diet of blue cheese and red wine. They are deeply committed to protecting the rights of all suspects to ensure the fairness of trials."

Bleby: intellectually challenged by the lawA retiring South Australian Supreme Court judge, David Bleby, recently came up with a "pigs will soon have to start flying" observation. He said that, "the next generation of lawyers must focus on serving their clients, not earning money". 

 Conventional legal thought is that fees are necessarily high because legal matters are often complex, and that lawyers wish they weren't so complex, but they are.

One should not be fooled. Legal complexity, which requires the creation of obscure language and thought, is the product of lawyers and judges.

Former NZ Prime Mnister David Lange said:

"Lawyers supporting plain language are like a mob of turkeys hoping for an early Christmas."

Deputations of turkeys ostensibly seeking an early Christmas frequently criss-cross the legal landscape. Here is a recent offering from the QLS.

David Bleby also said: "The most challenging intellectual exercises have been since I became a judge."

Such exercises are likely to be complex and therefore to inflate fees, and he went onto say: "Once making the decision to go into law, I've loved it ever since."

Professor Barton (of the University of Tennessee) in his book The Lawyer Judge Bias in the American Legal System devotes  chapter 11 to legal complexity.

While it is fairly obvious that lawyers want complexity, what about judges? Barton writes :

"Complex systems are harder to administer, so one might think that judges would seek simplicity - but they rarely do."

He sets out five reasons why not, adding:

"When lawyers judges or law professors talk about a true love of the law they are talking about ... [the] process of digesting and generating complexity."

In 2006 Dennis Jacobs, the Chief Judge of United States Court of Appeals for the Second Circuit, published an article entitled The Secret Life of Judges. 

In it he said: "The broadest judicial bias I see ... is the bias in favour of legal complexity."

 A plain English turkeyFlocks of legal turkeys are also to be found in the legal departments of legislatures, allegedly helping to make the law less "complex", whle doing the opposite.

A media release on May 12 from the Commonwealth attorney general referred to the introduction of the Acts Interpretation Amendment Bill 2011 into parliament, "which will make it easier for people to understand and interpret Commonwealth legislation".

Of course the last thing lawyers in any branch of government want is to make the law easier to understand, so the Bill makes no reference to "easier" or "understand".

One of the provisions of the Bill says that if it contradicts other Commonwealth law then the other law is to prevail.

One gets a strong impression that the draftspeople haven't much of an idea of what other contradictory laws are out there.

If there is a conflict between the Bill and the existing law, then surely it is the job of the law drafting people to discover it and fix it?

After Napoleon simplified French civil law he reputedly said (see Professor Legrand of the Sorbonne (footnote 131):

"No sooner had the code appeared that it was followed almost immediately, as if by way of supplement, by commentaries, explanations, developments, interpretations, and what not ! And I used to exclaim: 'Sirs, we have cleansed the Augean stables, in the name of God let us not fill them once again'."

Coming down to earth: a lawyer-farmerThere was a time when the fervid imaginations of lawyers came up with the grandiose concept of lawyers  being like statesmen, and some lawyers started using the term " lawyer-statesman".

Lawyers need to be brought down to earth. Some of the activities of farming suggest that the term "lawyer-farmer" might be a more apposite concept.